Can Biden Declare Martial Law to Suspend the Election?

 QUESTION: Marty, you are a constitutional scholar. I heard your father was quite brilliant and defended the Constitution, even going against McCarthy. I would like to hear your legal opinion on the following: Can Biden declare martial law like Zelensky and postpone the election?

DR

ANSWER: YES! The question of the constitutional status of martial law was raised during World War II by the proclamation of Governor Poindexter of Hawaii on December 7, 1941. He suspended the writ of habeas corpus and delegated to the local commanding General of the Army all his own powers as governor and also “all of the powers normally exercised by the judicial officers . . . of this territory . . . during the present emergency and until the danger of invasion is removed.” Two days later, the Governor’s action was approved by President Roosevelt. The regime which the proclamation set up continued with certain abatements until October 24, 1944.

During the Civil War, when it was over, a divided Court, in the elaborately argued Ex parte Milligan, 71 U.S. (4 Wall.) 2 (1866), was truly an important case that effectively ruled that the use of military tribunals to try civilians when civil courts are operating is unconstitutional. This also means that during war and courts can be closed, then all bets are off. The Court’s opinion bearing on this point is the following:

Can Biden Declare Martial Law To Suspend The Election? | Armstrong Economics